Fox v. Derrickson

104 A. 155, 30 Del. 129, 7 Boyce 129, 1918 Del. LEXIS 32

• Court: Superior Court of Delaware
• Decided: July 5, 1918
• Docket: Summons Case, No. 27
• Status: Published

Opinion

Boyce, J.,

delivering the opinion of the court:

This is an action by the plaintiffs against the defendants to recover damages for alleged breach of contracts, entered into between the parties in the year 1916, for the sale and delivery of canned tomatoes.

[1] The application now before the court is for the production and inspection of certain books and writings before the trial, after declaration and pleas filed. Books or writings that may be ordered produced under the statute are those “which contain evidence pertinent to the issue.” The statute and procedure thereunder contemplate evidence, and the fact that the documents sought contain material evidence pertinent to the issue must sufficiently appear so that the court may understand the necessity for their production.

The statute cannot be used, as it has been said for the purpose of “a fishing examination”; for such a purpose is altogether outside of the scope of the statute, so that the inquiry must be, does the application sufficiently show that the books and writings asked for contain evidence pertinent to the issue between the parties to the action? The contracts of sale averred in the declaration contain these, or similar, clauses, viz.:

“Subject to conditions beyond our [defendants’] control.” “Provided we [defendants] are able to pack.”

Obviously these provisions reserved by the defendants were for their protection, that is, they were intended to safeguard them against unforseen casualties or happenings that might prevent their packing the quantity of tomatoes which they contracted to deliver to the plaintiffs.

[2] It seems to the court, after a careful consideration of I this application, that while the books and writings asked for mayl not be pertinent in the first instance to support the plaintiffs’l cause of action, they do contain evidence material to the meritsl of the case. It is only necessary within the purview of the statute the same as in a bill for discovery of evidence, that the evidence to be produced may in any way be pertinent and material in support of plaintiffs’ right of recovery. If for any purpose the evidence sought may be introduced at the trial that is sufficient to require its production. In an application of this kind, the statute does not confine a party to evidence contained in books and papers, in itself constituting the cause of action, but it embraces all documents relating to the merits of the case. Indeed production of books and papers will be ordered whenever the court can fairly suppose that facts disclosed by them can be in any way material to the cause of action or defense. 1 Pom. Eq. Jur. § 191; Thomas et al. v. P. R. R. Co., 2 Pennewill (Del.) 411, 47 Atl. 380. Except as to the invoices which are not presumed to be in the possession of the defendants, sufficient is shown, we think, to enable the court to fairly understand the necessity for the books and writings sought, as containing evidence pertinent and material to the merits of plaintiffs’ action.

An order will be made for the production of all the books and writings asked for, except the invoices.